Morehead v. Superior Court

 

 

 

 

 

 

 

 

 

 

 

 

Filed 12/6/13  Morehead v. Superior Court CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

ROBERT MOREHEAD,         Petitioner,                            v.   THE SUPERIOR COURT OF ORANGE COUNTY,         Respondent;   THE PEOPLE,         Real Party in Interest.

G046910            (Super. Ct. No. M10439)            O P I N I O N

 

                        Original proceedings;
petition for a writ of mandate/prohibition to challenge an order of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Lance Jensen, Judge. 
Petition denied.

                        Frank Ospino, Public
Defender, Jean Wilkinson, Chief Deputy Public Defender, Sharon Petrosino and
Mark S. Brown, Assistant Public Defenders, for Petitioner.

                        No appearance for
Respondent.

                        Tony Rackauckas,
District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Real
Party in Interest.

*                *                *

>Introduction

Robert Morehead is the subject of
a commitment petition filed pursuant to the Sexually Violent Predator Act,
Welfare and Institutions Code section 6600 et seq. (SVPA).href="#_ftn1" name="_ftnref1" title="">^[1]  The respondent court found, pursuant to
section 6602, probable cause existed to believe Morehead met the criteria
for commitment as a sexually violent predator. 
By this petition for writ of mandate or prohibition, Morehead challenges
the respondent court’s decision to receive in evidence at the probable cause
hearing two evaluation reports prepared by psychologists appointed to evaluate
him pursuant to section 6601.  For
reasons we will explain, we deny the petition.

>Overview
of the SVPA Screening and

Evaluation Process

The
SVPA provides for involuntary civil commitment of an offender immediately upon
conclusion of his or her prison term if the offender is found to be a sexually
violent predator.  (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646 (>Reilly); People v. Yartz (2005) 37 Cal.4th 529, 534.)  A sexually violent predator is defined as “a
person who has been convicted of a sexually violent offense against one or more
victims and who has a diagnosed mental disorder that makes the person a danger
to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.” 
(§ 6600, subd. (a)(1).) 
A “diagnosed mental disorder” is defined to include “a congenital or
acquired condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a degree
constituting the person a menace to the health and safety of others.”  (§ 6600, subd. (c).)

The
procedure for commitment under the SVPA begins with an initial screen in which
the Secretary of California’s Department of Corrections and Rehabilitation
(CDCR) determines whether a person in CDCR custody might be a sexually violent
predator.  (§ 6601, subd. (a)(1).)  If the secretary determines the person might be
a sexually violent predator, the secretary refers that person to the next level
evaluation.  (Ibid.) 

After
the secretary’s referral, the person is screened by the CDCR and the Board of
Parole Hearings in accordance with “a structured screening instrument”
developed and updated by the State Department of State Hospitals (SDSH) in
consultation with the CDCR. 
(§ 6601, subd. (b).) 
“If as a result of this screening it is determined that the person is
likely to be a sexually violent predator, the [CDCR] shall refer the person to
the [SDSH] for a full evaluation of whether the person meets the criteria in
Section 6600.”  (>Ibid.)

The
procedures for a full evaluation are set forth in section 6601,
subdivision (c) (section 6601(c)) and section 6601, subdivisions (d)
through (i).  Under section 6601(c)
and section 6601, subdivision (d), the person is evaluated by two
practicing psychiatrists or psychologists, or by one of each profession.  The evaluations must be conducted “in
accordance with a standardized assessment protocol, developed and updated by
the [SDSH], to determine whether the person is a sexually violent predator as
defined in this article.” 
(§ 6601(c).)  If both evaluators
find the person “has a diagnosed mental disorder so that he or she is likely to
engage in acts of sexual violence without appropriate treatment and custody,”
then the SDSH forwards a request to file a petition for commitment to the
county of the person’s last conviction. 
(§ 6601, subd. (d).)  If
the county’s designated counsel concurs with the recommendation, then counsel
files a petition for commitment in the superior court.  (§ 6601, subd. (i).)

If
one of the two professionals performing the evaluation does not conclude the
person meets the criteria for commitment as a sexually violent predator, and
the other concludes the person does meet those criteria, then the SDSH “shall
arrange for further examination of the person by two independent professionals
selected in accordance with subdivision (g).”  (§ 6601, subd. (e).)  If an evaluation by two independent
professionals is conducted, a petition for commitment may be filed only if both
concur the person meets the criteria for commitment as a sexually violent
predator.  (§ 6601, subd. (f).)


Upon
filing of the SVPA commitment petition, the superior court must review the
petition and determine “whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.”  (§ 6601.5.)  If the court determines the petition on its
face supports a finding of probable cause, then it must order the person named
in the petition to be kept in a secure facility until a probable cause hearing
under section 6602 is conducted. 
(§ 6601.5.)  The probable
cause hearing must be conducted within 10 calendar days of the issuance of the
order finding the petition would support a finding of probable cause.  (Ibid.)

The purpose of the probable cause
hearing is to determine whether “there is probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.”  (§ 6602, subd. (a).)  If the court finds probable cause, it orders
a trial to determine whether the person is a sexually violent predator under
section 6600.  (§ 6602,
subd. (a).)  The person named in the
petition must remain in a secure facility between the time probable cause is
found and the time trial is completed.  (>Ibid.)

>Allegations
of the Petition and the Return

In January 2005, the Orange County
District Attorney filed a petition for commitment under the SVPA alleging Morehead
was a sexually violent predator as defined in section 6600.  Attached to the SVPA commitment petition were
two evaluation reports of Morehead; one report was prepared by Clark R. Clipson,
Ph.D., and the other was prepared by Mark A. Schwartz, Ph.D.  Judge Daniel J. Didier reviewed the
petition and found it stated sufficient facts which, if true, would constitute
probable cause to believe Morehead was likely to engage in sexually violent
predatory criminal behavior on his release. 
As a consequence, Judge Didier ordered Morehead to be detained,
pursuant to section 6601.5, in a secure facility until the probable cause
hearing. 

In
August 2008, the Office of Administrative Law (OAL) issued 2008 OAL
Determination No. 19, in which the OAL determined the 2007 version of the
SDSH’s Clinical Evaluator Handbook and Standardized Assessment Protocol
(Aug. 2007) (2007 SAP) used for SVPA evaluations amounted to an
“underground regulation” because portions of the assessment protocol, though
regulatory in nature, had not been adopted pursuant to Government Code section 11340.5,
part of the Administrative Procedure Act (APA; Gov. Code, § 11340 et
seq.).  (2008 OAL Determination
No. 19 (Aug. 15, 2008) p. 3, available at

[as of Dec. 6, 2013]; see Reilly,
supra, 57 Cal.4th at
p. 649.)  In In re Ronje (2009) 179 Cal.App.4th 509, 516-517 (>Ronje), disapproved in >Reilly, supra, 57 Cal.4th 641, we agreed with the OAL and likewise
concluded the 2007 SAP was invalid as an underground regulation.  In 2009, the SDSH issued the 2009 version of
its Standardized Assessment Protocol for Sexually Violent Predator Evaluations
(Feb. 2009) (2009 SAP) as the new standardized assessment protocol for
SVPA evaluations.  In February 2009, the
OAL took emergency regulatory action to adopt part of the 2009 SAP.  In September 2009, the OAL made permanent the
emergency regulatory action. 

In
response to Ronje, in November 2010,
Judge James P. Marionhref="#_ftn2"
name="_ftnref2" title="">^[2] ordered new evaluations of Morehead, pursuant
to section 6601, using a valid standardized assessment protocol and
ordered a new probable cause hearing based on the new evaluations.  In compliance with the court’s order, the SDSH
reassigned Dr. Clipson and Dr. Schwartz to evaluate Morehead.  In a report dated February 16, 2011, Dr. Clipson
concluded Morehead met the criteria for commitment as a sexually violent
predator.  In a report dated February 22,
2011, Dr. Schwartz also concluded Morehead met those criteria.

A
post‑Ronje probable cause hearing
was conducted over several days in July and October 2011, and March 2012,
before the respondent court.  At the
outset of the probable cause hearing, Morehead presented a motion in limine to
exclude the 2011 evaluation reports prepared by Dr. Clipson and
Dr. Schwartz.  Morehead argued their
evaluations of him were invalid because they were conducted in accordance with
the 2009 SAP, which, he argued, is not a valid standardized assessment protocol
under the SVPA and had not been promulgated as a regulation.  In February 2012, Morehead filed a supplement
to his motion in limine that included declarations from two psychologists
(Richard Wollert, Ph.D., and Robert L. Halon, Ph.D.), both of whom expressed
the opinion that the 2009 SAP is not a “standardized assessment protocol,” as
that term is understood in the “scientific and psychological community.” 

In
opposition, the district attorney submitted a copy of a declaration, dated
April 23, 2010, from Amy Phenix, Ph.D., the psychologist who developed the
SVPA standardized assessment protocols.  Dr. Phenix expressed the opinion the 2009
SAP “comports with the generally accepted definition of a ‘standardized
assessment protocol’” and “comprises a ‘standardized assessment protocol’
according to general acceptance in the field of psychology.” 

Dr. Clipson
and Dr. Schwartz testified at the probable cause hearing.  In March 2012, the respondent court issued a
written ruling that denied Morehead’s motion in limine.  The respondent court concluded the 2009 SAP
“meets and exceeds the statutory criteria of section 6601,
subdivision (c)” and therefore is a valid standardized assessment
protocol.  The court also concluded (1) section IV.D.
of the 2009 SAP, which requires the evaluators to use certain assessment tools,
had been submitted to the OAL as an emergency regulation and approved as a
permanent regulation in September 2009 and (2) the rest of the 2009 SAP
consists of statements from the SVPA and case law and therefore did not require
approval as a regulation by the OAL.  Dr. Clipson’s
February 2011 report and Dr. Schwartz’s February 2011 report were received in
evidence.

On March 16, 2012, the
respondent court found, pursuant to section 6602, probable cause existed
to believe Morehead met the criteria for commitment as a sexually violent
predator.

History of Writ Petition
Proceedings

In
May 2012, Morehead filed this petition for writ of mandate or prohibition to
challenge the respondent court’s order receiving in evidence the 2011
evaluation reports of Dr. Clipson and Dr. Schwartz.  We summarily denied Morehead’s writ
petition. 

Morehead
petitioned the California Supreme Court for review of our order summarily
denying his writ petition.  He presented
four issues for Supreme Court review, one of which was whether
Dr. Clipson’s February 2011 evaluation report and Dr. Schwartz’s
February 2011 evaluation report were updated or new evaluations.  The Supreme Court granted the petition for
review and transferred the matter back to us with directions to vacate our
order denying mandate and to issue an order directing the respondent court to
show cause why the relief requested in the petition for writ of mandate or
prohibition should not be granted.  We
complied with the Supreme Court’s directions. 
The district attorney filed a return to Morehead’s petition for writ of
mandate or prohibition, to which Morehead filed a reply.

After oral argument, we vacated
submission to allow the parties to file supplemental letter briefs addressing
the impact of Reilly, >supra, 57 Cal.4th 641, on this
case.  After receiving supplemental
letter briefs from the district attorney and Morehead, we resubmitted the
matter.

Discussion

>I.

The
Evaluators Conducted New Evaluations

as Then Required by Ronje.>

Morehead argues Dr. Clipson’s
February 2011 evaluation report and Dr. Schwartz’s February 2011
evaluation report were updated rather than new evaluations and, therefore,
should not have been received in evidence at the probable cause hearing.  We disagree.  Under Reilly,
supra, 57 Cal.4th 641, Morehead
cannot prevail even if this argument has merit. 


In Reilly, the Supreme Court concluded a court is not required to
dismiss SVPA commitment proceedings if the OAL determines the initial
evaluations supporting the SVPA commitment petition were conducted under a
standardized assessment protocol that did not comply with the OAL’s procedural
requirements.  (Reilly, supra, 57 Cal.4th
at p. 646.)  “Instead, an alleged
sexually violent predator (SVP) must show that any fault that did occur under
the assessment protocol created a material
error.”  (Ibid.)  “Absent material
error, ‘once a petition has been properly filed and the court has obtained
jurisdiction, the question of whether a person is a sexually violent predator
should be left to the trier of fact . . . .’”  (Id.
at p. 656.)  Reilly disapproved Ronje,
supra, 179 Cal.App.4th 509, to the
extent it required new evaluations using a valid standardized assessment
protocol without a showing of material error. 
(Reilly, supra, at pp. 655, 656.)

In Rabuck v. Superior Court (Dec. 6, 2013, G046936) __ Cal.App.4th
__, __ [page 10] (Rabuck), we
concluded that absent a showing of material error in using the 2007 SAP,
whether evaluation reports prepared using the 2009 SAP constituted new or
updated ones would make no difference to their admissibility at the probable
cause hearing.  Thus, “[a]bsent a showing
of material error, the [initial] evaluations of [Morehead] would be valid and
would support filing the SVPA commitment petition, and the 2011 evaluations
properly could serve as either new or updated evaluations under
section 6603, subdivision (c)(1).” 
(Id. at p. __ [p. 10].)  Morehead has not shown that use of an invalid
assessment protocol materially affected his initial evaluations.  (See Reilly,
supra, 57 Cal.4th at
p. 656.)  Since evaluators concluded
Morehead was a sexually violent predator under both the 2009 SAP and an earlier
version of the standardized assessment protocol, “it is clear that the 2007
protocol error did not materially affect the outcome of his probable cause
hearing.”  (Ibid.)

Morehead’s contention the
evaluations were “updates” rather than “new” has no merit even if it remains
viable after Reilly.  Ronje
required new evaluations under section 6601(c); that is, evaluations
conducted as though no prior diagnosis had been reached and no SVPA commitment
petition had yet been filed.  In
contrast, updated evaluations are permitted under section 6603,
subdivision (c)(1), “[i]f the attorney petitioning for commitment under
this article determines that updated evaluations are necessary in order to
properly present the case for commitment.” 


The evidence supported a finding
that Dr. Clipson’s February 2011 evaluation report and Dr. Schwartz’s
February 2011 evaluation report were new evaluations of Morehead.  At the probable cause hearing, Dr. Clipson
testified his 2011 valuation of Morehead was a new evaluation under section 6601.  Dr. Clipson explained that an updated
evaluation focuses on “what happened from the last point of interview,” while a
new evaluation under Ronje “cover[s]
the entire history, you re‑visit things that perhaps you discussed before
but you want to talk more about.”  He
testified that for the 2011 evaluation, he reviewed Morehead’s history from the
beginning. 

Our review of Dr. Clipson’s 30‑page
February 2011 evaluation report and Dr. Schwartz’s 44‑page February
2011 evaluation report confirms to us they are new evaluations under section 6601(c),
not updated evaluations under section 6603, subdivision (c).  Dr. Clipson conducted a clinical
interview of Morehead and considered his entire psychiatric, family, criminal,
and qualifying offense history, and reassessed all of the commitment criteria
and risk factors. Dr. Schwartz’s February 2011 evaluation report notes it
is a “Ronje evaluation.”  That evaluation
report states that Dr. Schwartz conducted a clinical interview of Morehead
and considered his entire psychiatric, family, criminal, and qualifying offense
history and interviewed Morehead as part of the 2011 evaluations of him.  Neither Dr. Clipson nor Dr. Schwartz
merely updated previous diagnoses; rather, their reports demonstrate they both
started anew in reaching the conclusion Morehead met the criteria for
commitment as a sexually violent predator.

>II.

>The Evaluators Followed the 2009 SAP.

Morehead argues that Dr. Clipson
and Dr. Schwartz, though purporting to use the 2009 SAP, in fact used the
2007 SAP in preparing their 2011 evaluations of him.  According to Morehead, the 2011 evaluation
reports prepared by Dr. Clipson and Dr. Schwartz demonstrate they
used the 2007 SAP because those reports include the same headings, apply the
same criteria, make the same findings, and use the same diagnostic tools and
risk factors, as those required by the 2007 SAP.

Under Reilly, if Dr. Clipson and Dr. Schwartz used the 2007 SAP
in preparing their 2011 evaluation reports of Morehead, any error would be
harmless unless he made a showing that use of the 2007 SAP resulted in material
error.  (Reilly, supra, 57 Cal.4th
at p. 656 & fn. 5.) 
Neither in his writ petition nor his supplemental letter brief
addressing Reilly, did Morehead make
such a showing.  Morehead does not
contend any of the reports prepared by Dr. Clipson and Dr. Schwartz,
or any of their diagnoses and conclusions, are inaccurate or otherwise invalid.

Our review of the record leads us
to conclude Dr. Clipson and Dr. Schwartz followed the 2009 SAP in
their 2011 evaluations of Morehead.  At
the probable cause hearing, both Dr. Clipson and Dr. Schwartz testified
they followed the 2009 SAP in their respective 2011 evaluations of Morehead.

Morehead argues Dr. Clipson
and Dr. Schwartz followed the 2007 SAP in their 2011 evaluations “[s]ince
each of the doctor’s reports contain[s] provisions required by the 2007 SAP,
and these same provisions are not required by or even mentioned in the 2009
SAP.”  Dr. Clipson’s and Dr. Schwartz’s
2011 evaluation reports did follow the format, outline, and structure provided
in the 2007 SAP and did include notice, provisions, and findings required by
that protocol.  But the 2009 SAP does not
prohibit them from doing so and does not prescribe a particular format,
outline, or structure for an evaluation report. 
(Rabuck, supra, __ Cal.App.4th at p. __ [p. 12].)  As Morehead argues, Dr. Clipson’s and Dr. Schwartz’s
2011 evaluation reports used the headings “Identifying Data,” “Findings,” and
“Conclusion” (boldface & some capitalization omitted), which were provided
by the 2007 SAP.  In Rabuck, supra, __
Cal.App.4th at page __ [page 12], we concluded, “those are logical
and natural headings for sections within an SVPA evaluation report.” 

In addition, Dr. Schwartz
testified his 2011 evaluation report of Morehead followed the same format as
the prior evaluation report, not because he followed the 2007 SAP, but because
“I’ve been doing this a long time and I’m comfortable with that format.”  Dr. Clipson testified, “the format
essentially was dictated by the statute.”

As further proof that
Dr. Clipson and Dr. Schwartz did not follow the 2009 SAP, Morehead asserts
they drafted their conclusions in a specific format required by the 2007 SAP.href="#_ftn3" name="_ftnref3" title="">^[3]  Section IV.C. of the 2009 SAP, >supra, at page 3, identifies the
question the evaluator must answer as “[d]oes the person being evaluated have a
diagnosed mental disorder so that he or she is likely to engage in acts of sexual
violence without appropriate treatment and custody?”  The findings in Dr. Clipson’s 2011
evaluation report and Dr. Schwartz’s 2011 evaluation report track this
question and answer it.  “Dr. [Clipson]
and Dr. [Schwartz] drafted their respective conclusions in a format that
is so obvious and logical that it cannot be said to be specific to the 2007
SAP.”  (Rabuck, supra, __
Cal.App.4th at p. __ [p. 13].)

Morehead contends Dr. Clipson
and Dr. Schwartz followed the 2007 SAP because they used procedures, diagnostic
tests, and actuarial risk assessment tools specifically required by that
protocol.  In Rabuck, supra, __
Cal.App.4th at page __ [pages 13‑14], we rejected a similar
argument.  We explained that “[u]nlike
the 2007 SAP, which provided detailed instructions on how to conduct a sexually
violent predator assessment and prepare an evaluation report, the 2009 SAP
relies on each evaluator’s exercise of ‘independent professional judgment in
the course of performing SVP [(sexually violent predator)] evaluations.’  [Citation.]” 
(Id. at p. __ [p. 13].)  We concluded that the evaluators’ decision to
follow procedures and practices and to apply tests, instruments, and actuarial
risk tools that were required by the 2007 SAP did not mean they failed to use
the 2009 SAP.  (Id. at p. __ [p. 14].)

Likewise, “the fact
Dr. [Clipson] and Dr. [Schwartz] decided to follow procedures and
practices and to apply tests, instruments, and actuarial risk tools that were
required by the 2007 SAP does not mean they failed to use the 2009 SAP.”  (Rabuck,
supra, __Cal.App.4th at p. __
[p. 14].)  In compliance with the
2009 SAP, Dr. Clipson and Dr. Schwartz explained in their respective
2011 evaluation reports how the tests, instruments, and risk factors they used
had gained professional recognition or acceptance in the field of diagnosing,
evaluating, or treating sexual offenders, how they were applied, and why they
were appropriate to Morehead. 

Morehead argues Dr. Clipson
and Dr. Schwartz used the 2007 SAP because, at the beginning of their
respective 2011 evaluation reports, each stated he provided Morehead with a notice
of evaluation as a sexually violent predator, presumably in the form attached
as appendix B to the 2007 SAP.  We
rejected the identical argument in Rabuck,
supra, __Cal.App.4th at page __
[page 14]. 

Morehead argues that
Dr. Clipson “presumably” followed the 2007 SAP in conducting the clinical
interview on February 10, 2011 because Morehead refused to sign the notice,
and the 2007 SAP stated the inmate “may want to interview without signing the
Notification.”  (2007 SAP, >supra, at p. 10.)  The 2009 SAP does not require the person to
sign a notice form before being interviewed and states, “[i]t is not required
that the person understand” the information provided by the notification
given.  (2009 SAP, supra, at p. 3.)  Thus,
the fact Dr. Clipson interviewed Morehead after he refused to sign the
notice form does not mean Dr. Clipson improperly followed the 2007 SAP.

Morehead also argues that
Dr. Clipson and Dr. Schwartz followed the 2007 SAP by including in
their respective 2011 evaluation reports a statement, required by the 2007 SAP,
on the question whether Morehead’s future sexually violent acts and offenses
would, or likely would, be predatory in nature.  â€œBut the fact Dr. [Clipson] and
Dr. [Schwartz] answered a question presented by the 2007 SAP does not lead
to the conclusion they did not follow the 2009 SAP and meet its
requirements.”  (Rabuck, supra,
__Cal.App.4th at p. __ [p. 15].)

III.

>The 2009 SAP Is a Legitimate Standardized
Assessment Protocol and Complies with Section 6601(c).

Morehead
argues the 2009 SAP is invalid because it is not a standardized assessment
protocol as that term is understood in the scientific and psychological
communities.  In support of this
argument, he relies on the declarations of Dr. Wollert and Dr. Halon,
both of whom presented a definition of a standardized assessment protocol,
reviewed the 2009 SAP, and concluded it did not come within that definition.  The district attorney, in response, relies on
Dr. Phenix’s declaration. 
Dr. Phenix, who was instrumental in developing the assessment
protocols under the SVPA, declared the 2009 SAP is a standardized assessment
protocol according to generally accepted principles of psychology.

The
respondent court concluded that Morehead did not overcome “the strong
presumption of regularity accorded administrative rules and regulations” and that
the 2009 SAP is a “genuine” standardized assessment protocol because it “meets
and exceeds the statutory criteria of section 6601, subdivision (c).”  It is not entirely clear whether, how, and to
what extent the respondent court considered Dr. Wollert’s declaration, Dr. Halon’s
declaration, and Dr. Phenix’s declaration, in concluding the 2009 SAP is a
valid standardized assessment protocol.href="#_ftn4" name="_ftnref4" title="">^[4]  Based
on the order, it appears the respondent court did not find Dr. Wollert’s
and Dr. Halon’s declarations persuasive and did not consider Dr. Phenix’s
declaration at all.  The order expressly relies
on section 6601 and the 2009 SAP itself to conclude “the 2009 SAP
qualifies as the [standardized assessment protocol] required by section 6601.”


Whether
the 2009 SAP constitutes a true standardized assessment protocol ultimately is
a legal issue the resolution of which depends on interpretation of
statute.  In Rabuck, supra, __
Cal.App.4th at page __ [pages 15‑18], we concluded, based on
statute and California Supreme Court authority, the 2009 SAP is a legitimate
standardized assessment protocol as required by section 6601(c).

IV.

>The 2009 SAP Was Properly Promulgated

as a Regulation.

Morehead
argues that if the 2009 SAP is a legitimate standardized assessment protocol,
it is invalid nonetheless because it is an underground regulation that was not
promulgated in accordance with the APA. 
But if the 2009 SAP was not promulgated in accordance with the APA, then
Morehead would have the burden of showing material error (Reilly, supra, 57 Cal.4th
at pp. 646, 656‑657); that is, “the invalid assessment protocol
materially affected his . . . evaluations” (id. at p. 656).  He has
not done so.  In addition, in >Rabuck, supra, __Cal.App.4th at page __ [pages 18‑19], we
concluded the 2009 SAP was validly promulgated as a regulation.

Government
Code section 11350 identifies the limited grounds on which the validity of
a regulation may be challenged.  Morehead
does not challenge the OAL’s approval of section IV.D. of the 2009 SAP on
any of the grounds identified in Government Code section 11350.

>Disposition

The petition for writ of mandate
or prohibition is denied.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

BEDSWORTH, ACTING P. J.

 

 

 

ARONSON, J.